Florida Senate - 2016 COMMITTEE AMENDMENT Bill No. CS for SB 494 Ì254758RÎ254758 LEGISLATIVE ACTION Senate . House Comm: RCS . 01/20/2016 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Rules (Montford) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete lines 171 - 502 4 and insert: 5 to disclose to a designated recipient or not to disclose some or 6 all of the user’s digital assets, including the content of 7 electronic communications. If the online tool allows the user to 8 modify or delete a direction at all times, a direction regarding 9 disclosure using an online tool overrides a contrary direction 10 by the user in a will, trust, power of attorney, or other 11 record. 12 (2) If a user has not used an online tool to give direction 13 under subsection (1) or if the custodian has not provided an 14 online tool, the user may allow or prohibit disclosure to a 15 fiduciary of some or all of the user’s digital assets, including 16 the content of electronic communications sent or received by the 17 user, in a will, trust, power of attorney, or other record. 18 (3) A user’s direction under subsection (1) or subsection 19 (2) overrides a contrary provision in a terms-of-service 20 agreement that does not require the user to act affirmatively 21 and distinctly from the user’s assent to the terms of service. 22 Section 5. Section 740.004, Florida Statutes, is created to 23 read: 24 740.004 Terms-of-service agreement preserved.— 25 (1) This chapter does not change or impair a right of a 26 custodian or a user under a terms-of-service agreement to access 27 and use the digital assets of the user. 28 (2) This chapter does not give a fiduciary or a designated 29 recipient any new or expanded rights other than those held by 30 the user for whom, or for whose estate or trust, the fiduciary 31 or designated recipient acts or represents. 32 (3) A fiduciary’s or designated recipient’s access to 33 digital assets may be modified or eliminated by a user, by 34 federal law, or by a terms-of-service agreement if the user has 35 not provided direction under s. 740.003. 36 Section 6. Section 740.005, Florida Statutes, is created to 37 read: 38 740.005 Procedure for disclosing digital assets.— 39 (1) When disclosing the digital assets of a user under this 40 chapter, the custodian may, at its sole discretion: 41 (a) Grant a fiduciary or designated recipient full access 42 to the user’s account; 43 (b) Grant a fiduciary or designated recipient partial 44 access to the user’s account sufficient to perform the tasks 45 with which the fiduciary or designated recipient is charged; or 46 (c) Provide a fiduciary or designated recipient a copy in a 47 record of any digital asset that, on the date the custodian 48 received the request for disclosure, the user could have 49 accessed if the user were alive and had full capacity and access 50 to the account. 51 (2) A custodian may assess a reasonable administrative 52 charge for the cost of disclosing digital assets under this 53 chapter. 54 (3) A custodian is not required to disclose under this 55 chapter a digital asset deleted by a user. 56 (4) If a user directs or a fiduciary requests a custodian 57 to disclose under this chapter some, but not all, of the user’s 58 digital assets to the fiduciary or a designated recipient, the 59 custodian is not required to disclose the assets if segregation 60 of the assets would impose an undue burden on the custodian. If 61 the custodian believes the direction or request imposes an undue 62 burden, the custodian or the fiduciary may seek an order from 63 the court to disclose: 64 (a) A subset limited by date of the user’s digital assets; 65 (b) All of the user’s digital assets to the fiduciary or 66 designated recipient, or to the court for review in chambers; or 67 (c) None of the user’s digital assets. 68 Section 7. Section 740.006, Florida Statutes, is created to 69 read: 70 740.006 Disclosure of content of electronic communications 71 of deceased user.—If a deceased user consented to or a court 72 directs the disclosure of the content of electronic 73 communications of the user, the custodian shall disclose to the 74 personal representative of the estate of the user the content of 75 an electronic communication sent or received by the user if the 76 personal representative gives to the custodian: 77 (1) A written request for disclosure which is in physical 78 or electronic form; 79 (2) A certified copy of the death certificate of the user; 80 (3) A certified copy of the letters of administration, the 81 order authorizing a curator or administrator ad litem, the order 82 of summary administration issued pursuant to chapter 735, or 83 other court order; 84 (4) Unless the user provided direction using an online 85 tool, a copy of the user’s will, trust, power of attorney, or 86 other record evidencing the user’s consent to disclosure of the 87 content of electronic communications; and 88 (5) If requested by the custodian: 89 (a) A number, username, address, or other unique subscriber 90 or account identifier assigned by the custodian to identify the 91 user’s account; 92 (b) Evidence linking the account to the user; or 93 (c) A finding by the court that: 94 1. The user had a specific account with the custodian, 95 identifiable by information specified in paragraph (a); 96 2. Disclosure of the content of electronic communications 97 of the user would not violate 18 U.S.C. s. 2701 et seq., 47 98 U.S.C. s. 222, or other applicable law; 99 3. Unless the user provided direction using an online tool, 100 the user consented to disclosure of the content of electronic 101 communications; or 102 4. Disclosure of the content of electronic communications 103 of the user is reasonably necessary for the administration of 104 the estate. 105 Section 8. Section 740.007, Florida Statutes, is created to 106 read: 107 740.007 Disclosure of other digital assets of deceased 108 user.—Unless a user prohibited disclosure of digital assets or 109 the court directs otherwise, a custodian shall disclose to the 110 personal representative of the estate of a deceased user a 111 catalog of electronic communications sent or received by the 112 user and digital assets of the user, except the content of 113 electronic communications, if the personal representative gives 114 to the custodian: 115 (1) A written request for disclosure which is in physical 116 or electronic form; 117 (2) A certified copy of the death certificate of the user; 118 (3) A certified copy of the letters of administration, the 119 order authorizing a curator or administrator ad litem, the order 120 of summary administration issued pursuant to chapter 735, or 121 other court order; and 122 (4) If requested by the custodian: 123 (a) A number, username, address, or other unique subscriber 124 or account identifier assigned by the custodian to identify the 125 user’s account; 126 (b) Evidence linking the account to the user; 127 (c) An affidavit stating that disclosure of the user’s 128 digital assets is reasonably necessary for the administration of 129 the estate; or 130 (d) An order of the court finding that: 131 1. The user had a specific account with the custodian, 132 identifiable by information specified in paragraph (a); or 133 2. Disclosure of the user’s digital assets is reasonably 134 necessary for the administration of the estate. 135 Section 9. Section 740.008, Florida Statutes, is created to 136 read: 137 740.008 Disclosure of content of electronic communications 138 of principal.—To the extent a power of attorney expressly grants 139 an agent authority over the content of electronic communications 140 sent or received by the principal and unless directed otherwise 141 by the principal or the court, a custodian shall disclose to the 142 agent the content if the agent gives to the custodian: 143 (1) A written request for disclosure which is in physical 144 or electronic form; 145 (2) An original or copy of the power of attorney expressly 146 granting the agent authority over the content of electronic 147 communications of the principal; 148 (3) A certification by the agent, under penalty of perjury, 149 that the power of attorney is in effect; and 150 (4) If requested by the custodian: 151 (a) A number, username, address, or other unique subscriber 152 or account identifier assigned by the custodian to identify the 153 principal’s account; or 154 (b) Evidence linking the account to the principal. 155 Section 10. Section 740.009, Florida Statutes, is created 156 to read: 157 740.009 Disclosure of other digital assets of principal. 158 Unless otherwise ordered by the court, directed by the 159 principal, or provided by a power of attorney, a custodian shall 160 disclose to an agent with specific authority over the digital 161 assets or with general authority to act on behalf of the 162 principal a catalog of electronic communications sent or 163 received by the principal, and digital assets of the principal, 164 except the content of electronic communications, if the agent 165 gives the custodian: 166 (1) A written request for disclosure which is in physical 167 or electronic form; 168 (2) An original or a copy of the power of attorney which 169 gives the agent specific authority over digital assets or 170 general authority to act on behalf of the principal; 171 (3) A certification by the agent, under penalty of perjury, 172 that the power of attorney is in effect; and 173 (4) If requested by the custodian: 174 (a) A number, username, address, or other unique subscriber 175 or account identifier assigned by the custodian to identify the 176 principal’s account; or 177 (b) Evidence linking the account to the principal. 178 Section 11. Section 740.01, Florida Statutes, is created to 179 read: 180 740.01 Disclosure of digital assets held in trust when 181 trustee is the original user.—Unless otherwise ordered by the 182 court or provided in a trust, a custodian shall disclose to a 183 trustee that is an original user of an account any digital asset 184 of the account held in trust, including a catalog of electronic 185 communications of the trustee and the content of electronic 186 communications. 187 Section 12. Section 740.02, Florida Statutes, is created to 188 read: 189 740.02 Disclosure of content of electronic communications 190 held in trust when trustee is not the original user.—Unless 191 otherwise ordered by the court, directed by the user, or 192 provided in a trust, a custodian shall disclose to a trustee 193 that is not an original user of an account the content of an 194 electronic communication sent or received by an original or 195 successor user and carried, maintained, processed, received, or 196 stored by the custodian in the account of the trust if the 197 trustee gives the custodian: 198 (1) A written request for disclosure which is in physical 199 or electronic form; 200 (2) A certified copy of the trust instrument, or a 201 certification of trust under s. 736.1017, which includes consent 202 to disclosure of the content of electronic communications to the 203 trustee; 204 (3) A certification by the trustee, under penalty of 205 perjury, that the trust exists and that the trustee is a 206 currently acting trustee of the trust; and 207 (4) If requested by the custodian: 208 (a) A number, username, address, or other unique subscriber 209 or account identifier assigned by the custodian to identify the 210 trust’s account; or 211 (b) Evidence linking the account to the trust. 212 Section 13. Section 740.03, Florida Statutes, is created to 213 read: 214 740.03 Disclosure of other digital assets held in trust 215 when trustee is not the original user.—Unless otherwise ordered 216 by the court, directed by the user, or provided in a trust, a 217 custodian shall disclose to a trustee that is not an original 218 user of an account, a catalog of electronic communications sent 219 or received by an original or successor user and stored, 220 carried, or maintained by the custodian in an account of the 221 trust and any digital assets in which the trust has a right or 222 interest, other than the content of electronic communications, 223 if the trustee gives the custodian: 224 (1) A written request for disclosure which is in physical 225 or electronic form; 226 (2) A certified copy of the trust instrument, or a 227 certification of trust under s. 736.1017; 228 (3) A certification by the trustee, under penalty of 229 perjury, that the trust exists and that the trustee is a 230 currently acting trustee of the trust; and 231 (4) If requested by the custodian: 232 (a) A number, username, address, or other unique subscriber 233 or account identifier assigned by the custodian to identify the 234 trust’s account; or 235 (b) Evidence linking the account to the trust. 236 Section 14. Section 740.04, Florida Statutes, is created to 237 read: 238 740.04 Disclosure of digital assets to guardian of ward.— 239 (1) After an opportunity for a hearing under chapter 744, 240 the court may grant a guardian access to the digital assets of a 241 ward. 242 (2) Unless otherwise ordered by the court or directed by 243 the user, a custodian shall disclose to a guardian the catalog 244 of electronic communications sent or received by the ward and 245 any digital assets in which the ward has a right or interest, 246 other than the content of electronic communications, if the 247 guardian gives the custodian: 248 (a) A written request for disclosure which is in physical 249 or electronic form; 250 (b) A certified copy of letters of plenary guardianship of 251 the property or the court order that gives the guardian 252 authority over the digital assets of the ward; and 253 (c) If requested by the custodian: 254 1. A number, username, address, or other unique subscriber 255 or account identifier assigned by the custodian to identify the 256 ward’s account; or 257 2. Evidence linking the account to the ward. 258 (3) A guardian with general authority to manage the 259 property of a ward may request a custodian of the digital assets 260 of the ward to suspend or terminate an account of the ward for 261 good cause. A request made under this section must be 262 accompanied by a certified copy of the court order giving the 263 guardian authority over the ward’s property. 264 Section 15. Section 740.05, Florida Statutes, is created to 265 read: 266 740.05 Fiduciary duty and authority.— 267 (1) The legal duties imposed on a fiduciary charged with 268 managing tangible property apply to the management of digital 269 assets, including: 270 (a) The duty of care; 271 (b) The duty of loyalty; and 272 (c) The duty of confidentiality. 273 (2) A fiduciary’s or designated recipient’s authority with 274 respect to a digital asset of a user: 275 (a) Except as otherwise provided in s. 740.003, is subject 276 to the applicable termsofservice agreement; 277 (b) Is subject to other applicable law, including copyright 278 law; 279 (c) In the case of a fiduciary, is limited by the scope of 280 the fiduciary’s duties; and 281 (d) May not be used to impersonate the user. 282 (3) A fiduciary with authority over the tangible personal 283 property of a decedent, ward, principal, or settlor has the 284 right to access any digital asset in which the decedent, ward, 285 principal, or settlor had or has a right or interest and that is 286 not held by a custodian or subject to a terms-of-service 287 agreement. 288 (4) A fiduciary acting within the scope of the fiduciary’s 289 duties is an authorized user of the property of the decedent, 290 ward, principal, or settlor for the purpose of applicable 291 computer fraud and unauthorized computer access laws, including 292 under chapter 815. 293 (5) A fiduciary with authority over the tangible personal 294 property of a decedent, ward, principal, or settlor: 295 (a) Has the right to access the property and any digital 296 asset stored in it; and 297 (b) Is an authorized user for the purpose of computer fraud 298 and unauthorized computer access laws, including under chapter 299 815. 300 (6) A custodian may disclose information in an account to a 301 fiduciary of the user when the information is required to 302 terminate an account used to access digital assets licensed to 303 the user. 304 (7) A fiduciary of a user may request a custodian to 305 terminate the user’s account. A request for termination must be 306 in writing, in paper or electronic form, and accompanied by: 307 (a) If the user is deceased, a certified copy of the death 308 certificate of the user; 309 (b) A certified copy of the letters of administration; the 310 order authorizing a curator or administrator ad litem; the order 311 of summary administration issued pursuant to chapter 735; or the 312 court order, power of attorney, or trust giving the fiduciary 313 authority over the account; and 314 (c) If requested by the custodian: 315 1. A number, username, address, or other unique subscriber 316 or account identifier assigned by the custodian to identify the 317 user’s account; 318 2. Evidence linking the account to the user; or 319 3. A finding by the court that the user had a specific 320 account with the custodian, identifiable by the information 321 specified in subparagraph 1. 322 Section 16. Section 740.06, Florida Statutes, is created to 323 read: 324 740.06 Custodian compliance and immunity.— 325 (1) Not later than 60 days after receipt of the information 326 required under ss. 740.006-740.04, a custodian shall comply with 327 a request under this chapter from a fiduciary or designated 328 recipient to disclose digital assets or terminate an account. If 329 the custodian fails to comply, the fiduciary or designated 330 recipient may apply to the court for an order directing 331 compliance. 332 (2) An order under subsection (1) directing compliance must 333 contain a finding that compliance is not in violation of 18 334 U.S.C. s. 2702. 335 (3) A custodian may notify a user that a request for 336 disclosure or to terminate an account was made under this 337 chapter. 338 (4) A custodian may deny a request under this chapter from 339 a fiduciary or designated recipient for disclosure of 340 341 ================= T I T L E A M E N D M E N T ================ 342 And the title is amended as follows: 343 Delete lines 8 - 14 344 and insert: 345 to a designated recipient or to prohibit a custodian 346 from disclosing digital assets under certain 347 circumstances; providing that a specified user’s 348 direction overrides a contrary provision in a terms 349 of-service agreement under certain circumstances; 350 creating s. 740.004, F.S.; providing construction; 351 authorizing the modification of a fiduciary’s or 352 designated recipient’s access to digital assets under 353 certain circumstances;